Appeal from the District Court of Fremont County. The Honorable Norman E. Young, Judge.
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, A. Walker Steinhage, Student Director, and Amanda Lemish, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Lemish.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] A jury found Appellant John Thomas Hereford guilty of second-degree murder for shooting and killing his cousin, and also of kidnapping and sexually assaulting his cousin's girlfriend. Appellant challenges his convictions on two theories. He claims that the district court erred in instructing the jury that it could presume malice from the use of a deadly weapon, and by not severing the murder charge from the other counts.
[¶2] We conclude that the permissive presumption instruction was proper, and that the district court did not err in declining to sever the kidnapping and sexual assault charges from the murder charge. Therefore, we affirm.
[¶3] 1. Did the district court err in instructing the jury that it could, but was not required to, presume malice from the use of a deadly weapon?
2. Did the district court abuse its discretion when it denied Appellant's motion to sever the second-degree murder charge from the remaining counts?
[¶4] Appellant, his cousin Travis Armajo, and their respective girlfriends, M.H. and B.B., spent an evening drinking alcohol together. They all drove to a local convenience store, purchased some rum, and then went to the trailer home where Appellant and M.H. lived. As he was driving the group back to the trailer, Appellant showed the others a black pistol and said " I'm going to waste a few shells on somebody."
[¶5] Once back at the trailer, the group began drinking and playing dominoes. After a while, B.B. left and walked a few blocks to the mobile home where she and Mr. Armajo lived. According to B.B., she left because M.H. asked her to. Appellant then went to B.B.'s residence and drove her back to his trailer, explaining that Mr. Armajo wanted her to return. At approximately 12:20 a.m., M.H., whom B.B. described as drunk and aggressive, again requested that she leave. B.B. left as requested, walked home, locked the door, and went to bed.
[¶6] B.B. testified that about a half hour later, Appellant pounded on her door and yelled at her to open up. She did so and asked him to leave. He instead forced his way in and hit her in the face with his pistol. She ran away and got out of the trailer through the back door, but tripped just outside and fell to the ground. Appellant caught up and forced her back into the house by pointing his gun at the back of her head. Once back in the trailer, Appellant started to rip B.B's clothes off, and he told her that he was going to rape and kill her. While holding his gun to her head, he forced his fingers into her vagina and then made her perform oral sex on him.
[¶7] During this nightmarish incident, B.B. repeatedly asked Appellant where her boyfriend Mr. Armajo was. Appellant eventually told her that he had shot and killed him. He told B.B. that if she did not comply with his demands for oral sex that there would be " one more dead body." She eventually escaped and ran to a neighbor's house
and pounded on the door, but no one answered. Appellant sat outside in his vehicle pointing the gun in her direction, but then drove away. B.B. hid under a tree and then a bush until she saw the lights of law enforcement vehicles on their way to Appellant's residence a short distance away. She then ran there to seek help.
[¶8] While B.B. was hiding and in fear for her life, Appellant drove to his mother's house. His mother called the police after he told her that he had shot and killed Mr. Armajo. When the police arrived at Appellant's mother's house, they observed blood on his clothing. As Appellant was being taken into custody, he asked an officer " [w]hat prison do you think I'll be going to?" The investigating officers found Appellant's black pistol on the passenger seat of his car.
[¶9] At Appellant's trailer, other officers found Mr. Armajo dead in a pool of blood with three gunshot wounds to his head and shoulder. They also discovered M.H., who had slept through the shooting, passed out in a bedroom.
[¶10] Ballistics tests proved that Appellant's black pistol fired at least two of the three bullets recovered: one from Mr. Armajo's skull and one from a couch. Forensic testing of the pistol also revealed traces of B.B.'s blood and a hair, which supported her account that Appellant struck her in the face with the gun. When officers canvassed B.B.'s home, they found a bloody shoeprint on the front door and a bloody shoe inside. Forensic testing confirmed that the blood on the door and shoe was Mr. Armajo's. The blood found on Appellant's pants was also tested and determined to be Mr. Armajo's. Law enforcement obtained Appellant's cell phone records and found, inter alia, a text message he sent around the time of the shooting, which stated " Drinkin Killinkin."
[¶11] Mr. Hereford was charged and bound over to the district court on one count of second-degree murder in violation of Wyo. Stat. Ann. § 6-2-104, one count of kidnapping-confinement in violation of Wyo. Stat. Ann. § 6-2-201(a)(ii), (d), and two counts of first-degree sexual assault in violation of ...